Carrying out the city plan

The ownership of land by the municipality is essential to the execution of many parts of a city plan. Certain acts of private owners which have a tendency to prevent the realization of a plan, either temporarily or for all time, may be enjoined by municipal regulation. Certain other acts in the furtherance of a plan may be induced by persuasion or compelled by administrative pressure. But at an early stage land or rights in land must be acquired for the public, and a municipality will be called upon to consider, first, whether it has a right to acquire or use land for a desired purpose; second, the methods of acquiring the land; and third, the equitable distribution of the cost of its acquisition.

THE RIGHT OF A MUNICIPALITY TO ACQUIRE AND HOLD LAND

It is well to emphasize at the start that the municipal ownership of land is subject to important limitations in the United States. It is customary to cite German examples of town planning and point out that the success of the plan is due to the large percentage of land under municipal ownership. German cities are encouraged to enter into the real estate field for the avowed purpose of checking speculation, and of reducing the over-crowding of lots, by releasing from private ownership land for building purposes. However desirable this may be in German cities, it is not permitted in any municipality in the United States.

In Germany as well as in the United States the purchase money at the disposal of any municipality is but the return from the taxation of the citizens, and the income of all can be spent only for a use that can be shared by all. German cities have reached a broad conception of a “public use” and have emphasized in this conception the rights of the community. The Constitution of the United States, on the other hand, was written when the individual was paramount in philosophy and politics, and the clause which protects the individual at the expense of the community has proved an effective check to the democratic tendencies which would substitute in importance the community for the individual. Consequently a “public use” in the United States has been more narrowly interpreted by the courts.

But new public needs have been recognized by the legislatures and sanctioned by the courts since the growth of great centers of population in the United States. To satisfy recreational needs the appropriation of the community’s money has been authorized both for the purchase and the condemnation of land for parks, boulevards, and playgrounds. It is not inconceivable that more radical needs will be recognized by legislatures and courts in the next twenty years. The need for the protection of the community against the selfishness of a few large property owners, for instance, may bring about the creation of a municipal board representing all the people of a community as a factor in the real estate market.

A municipality in the United States may become the owner of land by gift, dedication, or devise, and may use such land for any purpose whatsoever not inconsistent with the conditions of the gift, dedication, or devise. But land or rights in land can be acquired by the municipality out of public revenue only for a specific public purpose, whether the acquisition be by purchase or by appropriation under the power of eminent domain. If the city has acquired a complete ownership in land either by purchase or appropriation, it may make any use of the land so long as that use carries out some public purpose; except in the jurisdictions where it has been held that a city has only a qualified ownership which limits its right of use to the specific purpose for which the land was acquired.

METHODS OF ACQUIRING LAND

1. ACQUISITION BY GIFT, DEDICATION, OR DEVISE

There is nothing to prevent a city from taking and holding land for other than a public purpose, provided the tax payers’ money is not spent in the acquisition or holding of the land for the desired purpose. If in any specific case it were desired to grant real estate to a city for a purpose not covered in the city charter, the legislature would usually be found willing to pass enabling legislation. The character of most municipal administrations has not been promising enough to induce large holders of land to create trust estates which cities shall administer for the benefit either of all or of a certain class of their citizens; but there is nothing in legal theory which would prevent the acceptance on the part of a city, as trustee, of either real or personal property which the donor desires should be devoted to a certain use; as, for instance, to the providing of cheap and sanitary dwellings for its citizens. This is but one illustration of what might be done by the city as trustee, but the validity of any such trust would depend entirely on its administration without expense to the city.

2. ACQUISITION BY PURCHASE AND CONDEMNATION

The acquisition of land by the city for an unrestricted purpose either by gift, dedication, or devise is unusual, but its acquisition out of public revenue, for other than a public purpose either by purchase or by condemnation, is prohibited in all cities. In the latter case the city may take a fee, which is complete ownership of land, or an easement, which is the right merely to use the land for a specific purpose and one which will be interpreted as “public.” These restrictions on the right to acquire land by condemnation or purchase have a decided influence on a city plan.

RESTRICTION TO A SPECIFIC USE

If land is acquired for specific purposes in accordance with a well conceived city plan, and if the terms on which it is acquired prevent its use in any manner inconsistent with these original purposes, an important safeguard is thereby set up against an ill considered abandonment of the original plan. A subsequent administration can not then sacrifice the deliberate progress made along the lines of the original plan by confiscating any of the land so acquired and diverting it to the service of some new project which may for the moment seem more important but for which the city is unable or unwilling to buy additional land. Clearly this makes for a conservative stability of purpose which is wholly in accord with the spirit of city planning.

On the other hand the normal and healthy modification of the city plan to meet new conditions may be seriously hampered by any restriction of municipal land holdings to a specific use. Owing to the great physical changes due to the growth of a city the use for which land was originally acquired may be entirely outgrown. This situation may arise when land originally transferred to the city for park or school purposes becomes absolutely unsuited for such use and useful for another public purpose or for private corporations or individuals. It is on the one hand undesirable to devote a considerable area to a use which prevents the best all-round development of the city,—commercial, industrial, and residential; it is equally undesirable to allow a decrease in park or school lands except for the best of reasons.

Cities have adopted at times a very short-sighted real estate policy. They have sold their valuable holdings at a low figure, have seen the buyer realize a tremendous profit, and have been obliged to purchase sites at a greatly increased figure when by retaining their holdings they would have had adequate land for their needs. Buildings have been planted in parks in the supposed interest of economy, and by filling up the site the building has been robbed of distinction and the people of needed open space. Such offenses against good taste and true economy, which are two of the compounds of city planning, are committed even now when the need of parks is more fully recognized by the public and is being championed by the press. This mistaken idea of economy probably explains the location of many city halls, in cities large and small, in downtown squares where open spaces should be preserved for the benefit of the community and public buildings arranged to face upon them. Worcester, Massachusetts, used part of its old common for a city hall; Philadelphia appropriated for the same purpose one of the public squares set aside by William Penn; the city hall in St. Louis occupies six acres that were once a public square; Charleston, South Carolina, whose city hall dates from early times, took for its site one of four small parks; Pittsburgh placed on land originally used as a public square two market buildings; Delaware Park, in Buffalo, has been encroached upon by an art gallery and historical building in a manner seriously impairing its value for the purposes which controlled its original acquirement; another five-acre park in Buffalo has been used in part for a school house site.

These are instances where good city building demands the protection of the original purpose through stringent limitations on municipal authority. But it would be unfortunate if park lands or any other public lands which have become unsuited for their original purpose, or which even though still suitable would block a desirable change in the city plan, could not be diverted to a new use without too great expense or delay. Some public lands are easily leased for a long term at good rentals and may thus bring in an income which, if applied to the purpose for which the lands were originally acquired, would accomplish more than the direct use of the land itself. The return from former school house property now in the retail section of Chicago swells the school funds by $637,569 every year. The appreciation of one lot at the corner of La Salle and Adams Streets, bought for $8,750 for purposes of the water department and now occupied by the Rookery, is $2,142,000.

The trouble comes when, for instance, the plans for a new civic center, as in Cleveland, provide for a union terminal station on park land, or where Chicago wishes to locate a Field Columbian Museum in Grant Park. Controversies aroused by cases like these only after years of delay reach the supreme court for a determination of the conflicting rights of the city and the grantors or their heirs. The principles as evolved from cases that have been decided recognize clearly a distinction founded on the legal character of the ownership of the land in question.

Case 1.—Where the city has acquired merely a right in the land, for instance a right to use the land for park purposes, and the ownership has remained in the grantor, there is a unanimity of decision that the land must be used for park purposes only, and that any other use operates to leave the land in the ownership of the original grantor free from the incumbrance of the city’s use. This reversionary right may be purchased or, if necessary, condemned, since the power of eminent domain is paramount to any kind of ownership, but it must be paid for.

Case 2.—Where the city has acquired all right, title, and interest in land by condemnation, it is the law in New York, at least, that the legislature may change the use and provide even that land formerly used as a park may be conveyed to private individuals or corporations for a private use.

In the case of Brooklyn Park Commission vs. Armstrong, 45 N. Y. 234, the city of Brooklyn had acquired a fee simple—absolute ownership—by condemnation to lands which were to be henceforth used as Prospect Park. Subsequently when the park plans were more fully developed it was found best to include some additional lands and exclude some of those originally acquired. The city sold one lot to the defendant, who refused to take title on the ground that the city could not convey a clear title. The court held that since the title was received in trust for an especial public purpose the city could not convey without the sanction of the legislature, but that it was within the power of the legislature to relieve the city from the trust and authorize it to sell and convey:

Cases in other jurisdictions which seem to establish a different rule, namely, that the legislature can not divert property held by a municipality in trust for one purpose to another and inconsistent purpose, will be found to depend on the language of the particular statute or to be based on the conception that the complete ownership was never in the municipality.

Case 3.—The most perplexing situation arises where the land has been dedicated in fee for a particular public use, as for park purposes. The state of the law in this situation is by no means clear. Various state courts have come to different conclusions.

The Ohio court, in the case of Louisville and Nashville Railroad vs. Cincinnati, 76 Ohio St. 481, held that when a common, legal title of which was in the city in trust for its inhabitants, was no longer desired or the purpose for which it was dedicated was no longer obtainable, it would revert to the dedicator. But the Minnesota court in City of St. Paul vs. Chicago, Milwaukee and St. Paul Railroad, 63 Minn. 330, concluded that in attempting to divert property dedicated in fee simple for a specific purpose, the property would not revert to the dedicator but that the act of the legislature would be a mere nullity.

The most surprising decision on this point is that of South Park Commissioners vs. Ward, 248 Ill. 299. The case arose out of an attempt by the South Park commissioners of Chicago to locate the Field Columbian Museum in Grant Park.

The park had been dedicated forever to the use of the public by a platting in accordance with which there had been sold certain abutting lots, some of which had come into the possession of the defendants Ward et al. The right of the owners of the abutting lots to keep the park free from buildings was by a special statute of 1861 made enforceable by a bill in equity. Subsequent to 1893 an area many times the size of the original park was added to it by filling into Lake Michigan. The district abutting on the park had also undergone a radical change from its original residential character. The commissioners decided in 1909 to locate the museum on the addition to the park but were enjoined by Ward et al. The commissioners then proceeded under an act of 1903 which authorized them to condemn the rights in the park possessed by any lot owners under the original conveyance, but the petitions brought to condemn these rights were dismissed in the superior court.

In sustaining the decision the supreme court of Illinois held:

This decision is a denial of the sovereign power of eminent domain as is pointed out in the strong dissenting opinion. If the legislature could appropriate by eminent domain the property comprised in Grant Park before it was dedicated, it is impossible to see why it could not do the same thing after it was dedicated. Whatever the rights of the original dedicators or their heirs or those holding contract rights under them, those rights can be taken under the power of eminent domain like any other property right in any other jurisdiction but Illinois.

To avoid legal complications in the event of a change in use it is not enough to have inserted in the original dedication “for the use of the inhabitants as a park or for any other public use which the duly constituted authorities shall ordain.” Even under this provision, lands held in complete ownership by the city might become so dedicated to a specific use that the public, and perhaps in some jurisdictions private interests, would gain rights which later must be condemned if the land were desired for a different public use. This was the case in State vs. Woodward, 23 Vt. 92. A certain town had full ownership in a piece of land which could be used for any public purpose. An uninterrupted use by the public as a public common for twenty years had been allowed by the town, and the town survey described the land as a common. The court held that these facts amounted to a dedication of the land to the public use as a common, which was irrevocable. Cities must therefore be as guarded in preserving their control of the use of property as dedicators must be in the language of their grant if they wish to avoid restricting it to a special use.

Since such restrictions may either be valuable in maintaining a consistent city plan or may seriously impair the proper flexibility of such a plan, no general rule can be laid down as to their wisdom. They have proved an important protection in the case of many raids on park property, but it would seem that at least some portion of the lands acquired by a city ought to be readily transferable from one use to another without the delay and expense imposed by such a safeguard.

THE ACQUISITION OF LAND FOR A RESERVE ACCOUNT

The procedure in condemnation and the practice in purchasing prevent a city from taking advantage of the many opportunities which it has of becoming possessor of lands at an advantageous price, even though the need for such lands may be only a few years distant. In appropriating land against the will of its owner the purpose for which the land is acquired must be specified, and that purpose is closely scrutinized in some states by a jury which must find that the acquisition is necessary before the city can take further steps. In purchasing, cities usually come into the market for land, particularly for the sites of public buildings, when prices are high, a procedure which no well conducted business corporation would adopt. Bargains in land are taken advantage of only rarely and only indirectly. It is possible to buy small areas for one purpose and later use them for another; but there is little purchasing on the part of cities for what might be called a reserve account, although a very accurate forecast can usually be made of needs for lands for various public purposes based on the direction and rate of growth of the population. Considerable areas, to be sure, may be purchased for park lands and later, by authorization from the legislature, be diverted in part to other uses, thus accomplishing the purpose by indirection; but this is a bad public policy since it makes park lands, even when they become inadequate in area, subject to unlimited inroads in favor of any and every other purpose.

How much money might be saved to the city by purchase of land at favorable opportunities in advance of actual need is apparent in any city from the increase in property values due to growth in population. The congestion commission appointed by the mayor of New York in 1911 looked into the value of 943 city sites and found that the assessed value in 1908 in 537 cases had increased in value over the price paid.

Table 1 shows the percentage of increase in the values of these sites.

TABLE 1.—INCREASE IN VALUE, FROM DATE OF ACQUISITION TO 1908, OF 537 PUBLIC SITES IN NEW YORK CITY, ACQUIRED FROM 1812 TO 1900[6]

The dates of acquisition of the sites considered in the table varied from 1812 to 1900. Of the 406 pieces of property which showed no increase over purchase price, 230 had been acquired since 1900.

The committee pointed out that the city could do a great deal of purchasing for its park and playground accounts, even in comparatively unsettled districts, and these holdings would have influence in the carrying out of a city plan. The same is true of the purchase of land for school house sites. It has been very generally agreed that at least 30 square feet should be provided for every pupil registered in the city schools, but it is safe to say that very few cities have bought land to this amount. In 1905, Manhattan borough, New York City, lacked 65 acres for school houses alone on this basis. Almost 3000 acres were needed for playgrounds in boroughs outside of Manhattan, while Manhattan itself was hopelessly behind its recreation requirements. It would be a very good investment for New York as well as for any other city in the United States to buy school house sites at 43 cents a square foot, the price for which they can be bought in the borough of Richmond, instead of at $10.69 per square foot, which they cost in Manhattan.[7]

But it is impracticable to determine far in advance exactly which will be the best sites for schools and which for other purposes. All that can be safely said is that the total land needed for miscellaneous local uses will be at least equal to a certain minimum, and the acquirement of that minimum area by the city from time to time as favorable opportunities arise is a wise policy—provided that its ownership by the city does not withhold it for a long time from economic use pending its assignment to definite public service.

Both San Francisco and San Diego have saved considerable money by the inheritance from their Spanish founders of so-called “pueblo lands,” which they have in part used as parks and public building sites, in part have sold, and in part retain as an unapportioned reserve. Chicago’s investments in sites on Dearborn, State, and Clark Streets are returning large dividends and would yield much more if the rentals were graduated in accordance with increasing ground values. Los Angeles is proposing to use some of its landed inheritance for a housing experiment. If its plan is carried out, the city would loan the land, and the construction and maintenance of the houses be privately financed.

Limitations in law and practice on the power of the city to acquire land are for the protection of the tax payers against official extravagance and corruption. But finance commissions have well checked many kinds of municipal waste, and they can as effectively prevent a misuse of the purchasing and condemning power. City building can undoubtedly be carried out more economically through the purchase of a reasonable amount of land by the municipality for a reserve account.

THE ACQUISITION OF LAND FOR AN ESTHETIC PURPOSE

By an amendment to the charter of the city of St. Louis in 1901, the right was given the municipal assembly of St. Louis by ordinance to “prohibit the erection or establishment or maintenance of any business house or the carrying on of any business vocation” on property fronting on a boulevard which might thereafter be opened.[8] By an act of the legislature of Massachusetts in 1898, buildings “now being built or hereafter to be built, rebuilt or altered” on land abutting on a public square known as Copley Square, in Boston, were limited to the height of 90 feet.[9] By a bill presented in the national house of representatives in 1910, the commissioners of the District of Columbia were authorized to designate certain streets or avenues within the District as Class A highways, and on such highways to establish certain special restrictions which might include the prohibition of any kind of business, and might require that buildings should be of certain height, certain materials of construction, and of such architectural design “as shall secure the beautiful and harmonious appearance, as viewed from the public streets, of all structures to be erected or altered on land to which said restrictions shall apply.”[10]

In all this legislation provision was made for compensation to owners for the right in land thus taken, and herein the legislation partakes of the character of ordinary eminent domain statutes. But the interference with private property which this legislation authorized is at least an unusual application of the power of eminent domain, if not an extension of it for a new purpose.

The condemnation of private property for parks, playgrounds, and boulevards has been upheld as justified in the exercise of the power of eminent domain, but the decisions are for the most part very careful to point out that esthetic purposes were merely incidental, allowing the inference to be drawn that the taking would not be justified for purely esthetic reasons. Under the legislation cited, developments of private property may be to a considerable extent controlled, bill-boards may be abolished, structures may be limited in height, the design of private buildings may be modified, solely in the interest of the public’s sense of beauty.

The only precedent that has been cited to support the validity of the right in the public which is asserted in this legislation is the Massachusetts case of Attorney General vs. Williams, 174 Mass. 476, decided in 1899. This case arose under the Massachusetts statute of 1898 above cited. The defendants were owners of a building abutting on Copley Square, Boston, which had been built in violation of the statute prohibiting the construction of buildings above 90 feet in height on this square. The action was brought to restrain the maintenance of the building at the height above the statutory line. The court decided that the statute was constitutional and that the height of the building should be made to conform with the statutory provision. The language of the court has been generally interpreted to mean that rights in private land and buildings in the nature of an easement may be taken by eminent domain solely for the protection of the public’s esthetic sense.[11]

The court says merely that the taking of private property is justified to promote the beauty of a park and prevent encroachments on its light and air. It is very doubtful if any broader meaning should be given to its language, but, if it is, it is believed that there have been no decisions in other jurisdictions involving the same principle. If the decision is generally followed it will be no great extension of this principle to declare constitutional the legislation previously cited which has been enacted in Missouri and proposed in Washington. It may be as clearly for the benefit of the public to promote the beauty of a street or boulevard, as is attempted by the St. Louis and Washington legislation, as to promote that of a park, which was declared to be one of the aims of the Massachusetts legislation in Attorney General vs. Williams. Education may so increase esthetic sentiment as to compel a general extension of the power of municipalities to interfere with the rights of owners for purely esthetic reasons, just as education compelled a judicial sanction of the right to take private property for purposes of public recreation. The framing of an esthetic test which will adequately protect the sense of beauty and still withstand the assaults of property owners, will puzzle the most astute law makers. An impartial administration of the newly sanctioned power will also be difficult. Neither of these difficulties, however, will stand in the way if the public demands a universal recognition that esthetic purposes are sufficient to justify condemnation.